[Ws2-jurisdiction] RES: ISSUE: In rem Jurisdiction over ccTLDs

Wed Aug 23 14:39:18 UTC 2017

Dear Farzaneh,
Dear All,

Thank you very much for your reply. I will try to clarify the proposal I submitted a bit further, which may help us better frame the discussion from my point of view.

The proposal, as I see it, is not to obtain 'property' immunity for ccTLDs, or immunity from seizure or attachment. As you rightly suggested, if we were getting into that, we would perhaps also get into discussions about the status of ccTLDs, whether they are an expression of 'sovereign' rights or not, etc. But we don't need to.

Instead, the proposal is that ICANN (not the ccTLD manager) obtains jurisdictional immunity in respect of ICANN's activities relating to the management of ccTLDs. The effect is that ICANN could not be made defendant in domestic court proceedings that aim, for example, to force ICANN to re-delegate a ccTLD. This is on the understanding that no single country is entitled to exercise jurisdiction over ICANN in ways that interfere with ICANN's management of other countries' ccTLDs. I hope I have provided the rationale for this understanding in the e-mail where I described the issue and proposed solutions.

As to the apparent controversy about whether ccTLDs are property, again, strictly we may not need to get into that. My point relating to 'in rem jurisdiction' was therefore perhaps unnecessary, but the idea was to point to an existing practice in the US where domestic courts (and enforcement agencies) have found to have authority to interfere with domain names (and arguably ccTLDs) based on the 'location' of the 'domain name authority', as is ICANN, in the US. (I had previously touched on these points here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-May/001003.html).

Perhaps this was unnecessary. The main point is instead this: currently, it has been open to the organs of the single country with exclusive authority to enforce jurisdiction in respect of ICANN's ccTLD management activities (US exclusive territorial jurisdiction) the possibility of deciding that they will, or that they will not, interfere with such ICANN's activities. And regardless of the reason they invoke to legally justify their interference, however justifiable it may be from a domestic law point of view (because, say, ccTLDs are property or they have 'in rem jurisdiction'), the point is that it should not up to the organs of any country to chose and decide on the reasons to interfere, and then interfere, with ICANN's management of other countries' ccTLDs.

It is because US organs can possibly interfere with ICANN's ccTLD management, as an expression of US exclusive enforcement jurisdiction over things or activities performed in US territory, that it is necessary to recommend that ICANN obtains immunity in respect of its ccTLD management activities. Any measure that clearly rules out that possibility, in turn, for it to meet ICANN's accountability goals towards all stakeholders, should not be left to unilateral decisions of the organs of one State, or to the vagaries of US jurisprudence, however uniform and constant it might be.

Best regards,

Thiago

________________________________
De: ws2-jurisdiction-bounces at icann.org [ws2-jurisdiction-bounces at icann.org] em nome de farzaneh badii [farzaneh.badii at gmail.com]
Enviado: quarta-feira, 23 de agosto de 2017 9:07
Para: Nigel Roberts
Cc: ws2-jurisdiction
Assunto: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

In the .IR case, the court did not decide on whether ccTLD is a property or not. Anyhow, I do not think we should go into that discussion. I think the important thing to find out is whether the court case in .IR is precedential.

I don't think the second part of your solution would work Thiago, if jurisdictional immunity is not granted to ccTLDs ( I don't know how we can get such jurisdictional immunity and don't forget that some ccTLD managers are totally private and not government run).

The below might not be enforceable:

"ICANN Bylaws an exclusive choice of forum provision, whereby disputes relating to the management of any given ccTLD by ICANN shall be settled exclusively in the courts of the country to which the ccTLD in question refer."

First of all not many ccTLDs have contracts with ICANN. Secondly, in third party claims or disputes, for example in case of initiating attachment of a ccTLD as an enforcement of a monetary compensation, this clause might be challenged and might very well be ineffective.

Farzaneh

On Wed, Aug 23, 2017 at 7:05 AM, Nigel Roberts <nigel at channelisles.net<mailto:nigel at channelisles.net>> wrote:
You can make such assertions all you like, but it doesn't make it necessarily so.

The best I can offer by way of certainty in the matter is "we don't really know, but we can take some guesses".

The difference between the DNS and spectrum is that spectrum exists per se. The DNS only exists becuase it was designed and constructed.

I could start a different DNS tomorrow. It would not get wide use, but it would not differ in any way from the existing DNS.

Furthermore possible new technologies can outdate the current DNS (I'm thinking of blockchain) just like SMTP outdated and made X.400 useless.

On 23/08/17 11:52, Arasteh wrote:
Dear All
ccTLD at any level shall not be considered as property or attachment at all.
gTLD including ccTLD are resources like orbital /spectrum which are not at possession of any entity but could be used under certains rules and procedure established for such use
Any action by any court to consider it as attachment is illegal
and illegitimate as DNS shall not be used as a political vector or means against any people covered under that DNS.
Being located in a particular country does I no way grant / provide any legal or administrative or judicial right to that country . DNS is a universal resources belong to the public for use under certains rules and procedure and shall in no way be used asa vehicle for political purposes.
We need to address this issue very closely and separate political motivation from technical use.
Regards
Kavouss
Sent from my iPhone

On 23 Aug 2017, at 08:52, <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>> <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>> wrote:

Dear all,

please excuse my ignorance, but have domain names not be seized as "assets" or "property" in the US under the application of domestic law?

Wikipedia info is here: https://en.wikipedia.org/wiki/Operation_In_Our_Sites

If a second level domain is subject to potential seizure, why not a TLD?

Regards

Jorge

-----Ursprüngliche Nachricht-----
Von: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org>] Im Auftrag von Nigel Roberts
Gesendet: Mittwoch, 23. August 2017 08:44
An: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

Milto

There is no authority at all for this Claim, in law, as I suspect you know.

As I suspect you also know very well, the nearest evidence that might support such a Claim is that one of the contentions in /Weinstein/ was that a ccTLD (three of them, if I remember correctly) could be garnished under the "state law" of DC. (I know technically, DC is not a state of the Union, but I don't know the US correct term-of-art for 'state or capital region')

Unfortunately or fortunately (depending on one's point of view) it was not necessary for the Court to decide on this claim by the Judgment Debtor. This means that the idea that US courts might either have either or both of :-

(a) legal jurisdiction over the ownership of the rights represented by a ccTLD delegation

(b) the desire to exercise such (lack of desire to address a particular contention usually leads judges in common-law systems to be able conveniently to find a creative ratio that finds other reasons that the case can be decided

remains a completely open question.

It seems to me that additional hints for future litigants (as you know, common-law judges do that too) appear to have been given in the Weinstein judgment as to whether the rights in law enjoyed by a ccTLD manager (whatever they might be) MIGHT constitute property or not, but this remarks don't even amount to /obiter dictum/ - they are just hints at a possible road of future judicial travel and any court seised of a future Claim is entirely free to ignore them.

And, even so, those hints don't address the question of /in rem/ at all.

As you can see, I (along with some others in the ccTLD community) havefollowed, and analysed this case carefully and in some detail.

We are aware of no other possible legal authority that addresses whether ccTLDs are property (let alone whether that property, if it is property, is subject to /in rem/ jurisidiction).

Unless others have additional information?

Nigel Roberts

PS: I would also commend others to read Farzaneh and Milton's ccTLD paper.

On 22/08/17 22:31, Mueller, Milton L wrote:

Issue 3: In rem Jurisdiction over ccTLDs

Description: US courts have in rem jurisdiction over domain names as a
result of ICANN's place of incorporation

What is the evidence for this claim?

--MM

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